Panchayats : Regular and Irregular By Anil Nauriya THE Gram Nyayalayas Act, 2008, which came into effect

on 2 October 2009, is gradually being implemented across the states. It provides for courts at the level of panchayats or a cluster of panchayats. These courts will deal with specified categories of civil and criminal cases. This legislative enactment comes at a time when rural mobs in north-western India, operating as pretender panchayats, have been defining certain crimes, even awarding summary punishment. These irregular organisations, now widely known in Rajasthan, Haryana and adjoining areas as khap panchayats have for some years been pronouncing punishments on the medieval pattern. They are targeting couples who marry within the same gotra (comprising individuals related through the paternal agnatic lineage up to any degree). The Hindu Marriage Act, 1955, limits the prohibition to three generations through the mothers line and five generations through the fathers line. This is disregarded by the khap. In its reckoning, a couple belonging to a common gotra are as good as brother and sister even if the lineage-relation is not such as to be barred under the Hindu Marriage Act. These so-called panchayats have also targeted marriage outside caste groups, an attitude that fuels the anti-Dalit violence as witnessed recently in Hissar. The problem is rooted in the fear of the village elders that they are losing control over society. They feel that the young are more assertive thanks to new opportunities and the freedom of choice. Extra-legal fiat A recent khap panchayat meeting raised the demand that the law be amended to bar marriages within a gotra. This is an admission, if only implicit, that what the khaps have been seeking to enforce is an extra-legal fiat. They ignore the fact that while the existing law bars some marriages within a gotra, it doesnt give the khaps criminal jurisdiction to enforce the death sentence that they have been pronouncing from time to time. Mahatma Gandhis writings on irregular panchayats call for reflection. In the aftermath of the boycott of British institutions as part of the non-cooperation movement in the 1920s, attempts were made by certain quarters to confer civil and criminal powers upon village elders. Gandhi condemned the move though he favoured panchayats and spoke of

village republics. In Haryana and parts of western Uttar Pradesh, the ostracising of non-conformist families is fairly frequent even now. To sections of these communities, this is one of the mildest punishments they feel entitled to administer. When some panchayats had resorted to social ostracism of political opponents as part of the non-cooperation movement, Gandhi had warned: Ostracism of a violent character such as the denial of the use of public wells is a species of barbarism. (Young India, 8 December 1920). Social boycott in villages, Gandhi iterated 11 years later, has been found to be a dangerous weapon in the hands of ignorant or unscrupulous men. According to him, the imposition of fines by panchayats was also undesirable as it may lead to mischief. On a visit to Nainital, Gandhi discovered that in certain places in UP even criminal cases like rape were tried by the so-called panchayats. He wrote: I heard of some fantastic judgments pronounced by ignorant or interested panchayats. He received a report from Chaparmukh in Assam that some Congressmen had set up a parallel administrative machinery which was imposing fines in criminal cases and passing decrees in civil suits. This is bad if it is true. Irregular panchayats are bound to fall to pieces under their own unsupportable weight. (Young India, 28 May 1931). Of course, this would apply to all kangaroo courts, whether of the reactionary Right or of the extreme Left. Gandhi had closely observed the functioning of panchayats, including the irregular ones. He had laid down certain guidelines regarding the powers and duties of panchayats that were formed in the course of the freedom movement. It was stipulated that they would have no criminal jurisdiction; even their civil jurisdiction should be heavily circumscribed. No one would be compelled to refer any matter to the panchayats. And no panchayat would have any authority to impose fines, the only sanction behind its civil decrees being its moral authority, strict impartiality and the willing obedience of the parties concerned. Gandhi also outlined the duties and constructive work to be performed by such panchayats. These included the education of boys and girls in the village, sanitation, medical needs, cleanliness of wells and ponds and the uplift of the so-called Untouchables. Discussing the sanction behind the orders made by such panchayats, Gandhi raised an issue that political theorists would call the question of legitimacy: Where a panchayat is really popular and increases its popularity by the constructive work of the kind suggested, it will find its judgments and authority respected by reason of its moral prestige. And that surely is the greatest sanction anyone can possess and of which one cannot be deprived. (Young India, 28 May 1931). The Mahatma appealed to the panchayats, whether regular or irregular,

not to overreach themselves and instead focus on their own duties relating to the basic needs of the people in their area. This has some bearing not only upon the activities of khap leaders but also on their Left radical counterparts in eastern India. Rural courts THE Gram Nyayalayas Act, 2008, has been promulgated in the current khap-dominant scenario. The subjects under the purview of the Gram Nyayalayas may not bring them into direct conflict with khap leaders in the north-western parts of the country. Even so, the introduction of rural courts with some statutory authority should provide a positive counter-weight to the irresponsibility and high-handedness of khap panchayats. The Gram Nyayalayas will not be able to try cases involving offences punishable with death, life imprisonment or imprisonment for a term exceeding two years. However, certain features of the Gram Nyayalayas Act will give rise to concern. Having conferred both civil and criminal jurisdiction upon the Gram Nyayalayas, the enactment provides for plea-bargaining in criminal cases. This is plainly dangerous, especially if social pressure forces an innocent suspect to plead guilty to a lesser offence and thereby incriminate himself. For similar reasons, the provision made in civil cases that no appeal would lie from a Gram Nyayalayas order if it is passed with the consent of parties, seems too sweeping. An appellate court ought not to be prevented from inquiring into the question whether the consent of the parties was freely obtained or if it was the result of undue social pressure and whether the final order is fair to all concerned. How the statutory institutions set up under the Act, are able to function in the eastern parts of the country remains an open question. [A slightly shorter version of this article was published in The Statesman, New Delhi, on April 29, 2010 ]